South African Constitutional Court Research Articles

The dose–effect relationship in PTSD: the South African Constitutional Court Case of AK v. Minister of Police (2022)

The decision of the South African Constitutional Court in AK v. Minister of Police has implications for law enforcement agencies that fail the victims of crime. In this matter, the plaintiff sued the Minister and others for damages after officers had failed to rescue her from the perpetrator(s) of a protracted sexual assault and to conduct an adequate criminal investigation afterwards. The judgment deals with a noteworthy psycholegal issue, namely, whether the police are liable for any harm resulting from the plaintiff’s continued trauma exposure beyond the moment a competent search would have likely resulted in her rescue, when her trauma exposure was already prolonged. In this paper, we consider whether the interpretation of the expert evidence is consistent with the relevant research. Research suggests the psychological harm caused by police negligence may have been more than a matter of extended trauma exposure but also of supplemental trauma appraisals.

Judicial problem-solving: An evaluation of Grobler v Phillips and Others [2022] ZACC 32

The South African Constitutional Court was recently tasked with considering whether the "just and equitable" requirement of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act had been complied with when an eviction order was granted in the Somerset West Magistrates' Court. The Magistrates' Court found that the occupier unlawfully occupied the land and determined that the eviction was just and equitable in the circumstances. However, the High Court and the Supreme Court of Appeal held that the order of the Magistrates' Court could not be confirmed. With certain conditions attached, the Constitutional Court held that the eviction was just and equitable. These judgments are noteworthy as they highlight the in consistencies in the reasoning of the various courts that considered the same facts. The conclusion is that judicial reasoning which creates tension between the rights of private landowners and unlawful occupiers is not constructive. Ideally, evictions should be resolved by enforcing a potentially homeless person's right to access adequate housing by holding the state to account for its constitutional obligations.

An Examination of the Best Practices on the Independence of the Anti-Corruption Agencies in Hong Kong and Singapore: Lessons for Nigeria

Anti-Corruption Agencies are great weapons in the fight against corruption. However in some countries, Anti-corruption agencies perform below expectation and as such leave much to be desired while in some other countries they perform with credible results. This paper looks at the Anti-Corruption Agencies in Honk-Kong and Singapore to discuss some of the practices that contributed to their success having drawn the yard stick set by The South African Constitutional Court on the Independence of Anti-corruption agencies. The paper then looks at the Nigerian experiences and uncovers the major drawbacks of its Anti-Corruption Agencies and what lessons Nigeria learn from.

Investigating Small-scale Farmers and Barriers to Entry in Cannabis Cultivation in South Africa

The legalisation of the prodigal green crop has left the most vulnerable small-scale cannabis farmers high and dry. In 2018 the South African constitutional court legalised the use of cannabis for personal and medical use. The 2018 regulations on cannabis were welcomed and a new lifeline in the eradication of poverty. However, in the haste to join the global urgency in cultivating cannabis, small-scale farmers were left behind and prevented in the bid of the green-gold rush. The cannabis legislation and laws that were created to enable South Africans to participate in the lucrative cannabis market has done the opposite and has crafted barriers of entry. Using a desktop study, this article explores how the 2018 regulations on cannabis cultivation prevent small-scale farmers in participating in the l market in South Africa. The aim of this paper is to highlight the challenges that small-scale cannabis farmers face in South Africa and how their participation in the newly opened market would benefit the communities they live and operate in. The main findings of the research indicate the challenges for small-scale farmers of no support system and transformational issues persist even after the 24 years of democracy in South Africa.

Hard Cases Make Bad Law: Reflections on the South African Constitutional Court’s Jurisprudence on the Development of African Customary Law in South Africa

Judicial interpretation and adjudication are complex and controversial processes that the judiciary has been grappling with for centuries. This persists in modern constitutional judicial processes, particularly when adjudicating ‘hard cases.’ African customary law cases are indeed hard or difficult cases. This is especially so when it comes to the development of African customary law. This article reflects on the jurisprudence of the Constitutional Court of South Africa regarding the development of African customary law. It is concluded that although there were some commendable strides in the development of African customary law in a few cases at its inception, the court has in subsequent judgments faltered. In these ‘hard cases’ the court has, in many instances, adopted a conservative, formalistic, literalistic approach, often using technicalities to either avoid the development of African customary law or simply abdicate its judicial responsibility. This flies in the face of the project of transformative constitutionalism and produces bad law when it comes to the court’s jurisprudence on the development of customary law.

Drucilla Cornell and the Meaning of Ubuntu in South African Jurisprudence

This article pays homage to Drucilla Cornell through examining her writings on ubuntu not only as a jurisprudential concept, but also as a philosophical and ethical concept. Cornell’s incisive ability to synthesize Kant’s idealism of the realm of ends and the African philosophy of ubuntu, combined with her revolutionary spirit, deepened understanding of the South African constitutional values and principles. Exploring the interpretation of ubuntu by the South African Constitutional Court, it shows how Cornell advanced an ubuntu-inspired ethical ideal that informs and shapes dignity as the Grundnorm of the South African Constitution. For Cornell, as a transformative ethic, ubuntu imposes obligations upon us to live up to ideals in our relationships with each other and to ideals of the new democracy. Cornell championed the idea of a substantive revolution brought about by the Constitution and argued for a reading of the South African Constitution against these aspirational ideals.

The Adverse Effect of Immigration Laws on a Migrant Child’s Right to Family Life: A Reminder of the South African Nandutu Case

ABSTRACT A child’s right to grow up with its parents is presented in articles 9 and 25 of the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of a Child, respectively. South Africa has ratified both treaties, and thus has a duty under international children’s law to protect children’s rights in domestic South African law. At the national level, section 28 of the Constitution of the Republic of South Africa, 1996, contains a variety of rights of children. Particularly, section 28(1)(b), akin to international children’s law, protects a child’s right to family or parental care. Using a child-rights-based approach, guided by the rationality of the principle of best interests of the child and a child’s right to life, this article seeks to appraise the 2019 judgment of the South African Constitutional Court in Nandutu v the Minister of Home Affairs, in which the Court declared reg 9(9)(a) of South Africa’s Immigration Regulation of 2014 inconsistent with the Constitution. In analysing this decision, legislation, and case law, this article further aims to highlight the significance of Nandutu, through the lens of a migrant child’s right to family life.

In Search of a Comparative Methodology in the Jurisprudence of the South African Constitutional Court

This article examines whether a judicial methodology to the use of comparative law has developed in the jurisprudence of the South African Constitutional Court. It does so by examining 10 recent cases where the Constitutional Court has considered foreign law. The author finds that a clear legal methodology to the use of foreign law has not developed in the jurisprudence of the South African Constitutional Court. Foreign law is often relied on in a piecemeal fashion and these examples are often “cherry picked” with little or no justification provided by the Court. The Court still shows apreference for considering “Global North” experiences. In addition, the Court has mostly failed to consider the social realities and cultural considerations of the comparator countries vis-à-vis those of South Africa.

UNDOING THE PAST THROUGH STATUTORY INTERPRETATION: THE CONSTITUTIONAL COURT AND MARRIAGE LAWS OF APARTHEID

Recent legal scholarship has increasingly focussed on the way in which the law can be employed as a strategy of memory in post-conflict societies. War crimes trials, civil reparation or restitution claims, and the like, have all been extensively discussed as memorial practices. However, the way in which ordinary process of statutory interpretation can be employed to undo the past has thus far received little or now attention. In this article I investigate how the South African Constitutional Court has approached the interpretation of a number of apartheid marriage laws under sections 35(2) of the interim and 39(2) of the final Constitutions. I argue that, far from adopting a purposive approach to statutory interpretation as is often claimed, the court has in fact adopted a very narrow textual approach to statutory interpretation. I claim that this approach to the legislative legacy of the past is both hermeneutically and politically suspect. What is more, it discloses a predilection for monumental, as opposed to, memorial practices of memory.

The South African Constitutional Court Decides Against Statelessness and in Favour of Children

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Deciding Matters of General Public Importance in South African Law: Guidance from the United Kingdom Supreme Court

Abstract The South African Constitutional Court is now conferred with the authority to decide matters of general public importance. Of course, the mere statement that the highest court should assume the authority to decide broad public matters does not assist litigants to fully understand which matters may be appealed to that court. Similarly, the Constitutional Court cannot accept appeals without consideration of its new appellate jurisdiction. The court should accept appeals with proper regard of its appellate jurisdiction; otherwise the extension of its jurisdiction could be rendered meaningless. The term “matters of general public importance” is rather novel in South African law; thus it is quite difficult to frame exactly what is implied by the term within the South African context. This article undertakes a comparative study to assess the term. A perusal of the jurisdiction of the United Kingdom Supreme Court may perhaps elucidate what is meant by the words “matters of general public importance”.

AFFIRMATIVE ACTION: ONLY A SHIELD? OR ALSO A SWORD? Harmse v City of Cape Town (2003) 24 ILJ 1130 and Dudley v City of Cape Town (2004) 25 ILJ 305 (LC)

The Employment Equity Act 55 of 1998 (hereinafter “the EEA”) which gives more detailed content to the right of equality enshrined in section 9 of the Constitution of South Africa, compels employers to promote equality in the workplace by eradicating unfair discrimination in employment policies and practices. Unfair discrimination against any employee, whether directly or indirectly, based on that employee’s race, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age,disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth is prohibited (s 6(1)). However, it is not unfair discrimination to take affirmative action measures consistent with the purpose of the EEA (s 6(2)). If an employee is thereforedifferentiated against due to affirmative action measures of the employer, such an employee will not succeed in an action based on unfair discrimination, provided that the employer acted within the permissible bounds of affirmative action. It has in fact been held by the South African Constitutional Court that any action in accordance with permissible affirmative action policies does in fact not amount to unfair discrimination (Minister of Finance v Van Heerden (2004) 25 ILJ 1593 (CC)). Affirmative action is therefore raised by employers as a justification for apparent unfair discrimination. If the justification is successful the particular court will conclude that there was no unfair discrimination. Affirmative action in this context is used as a shield, not a sword (see Dupper and Garbers“Commentary: Affirmative Action” in Thompson and Benjamin (eds) South African Labour Law Vol 1 (2002) 1-59). But can affirmative action be used as a sword? Can an employee (as envisaged in the EEA) argue that he or she is a victim of discrimination because his or her employer did not apply affirmative action measures consistent with the EEA? Is such a person also the victim of unfair discrimination? Can such a person base an application on section 6 of the EEA? This question may seem strange (see Grogan Dismissal, Discrimination and Unfair Labour Practice (2005) 93) and will in all probability not arise where only formal discrimination is at issue. In South Africa, however, where the ultimate goal is the achievement of substantive equality however, the issue needs consideration. Substantive equality can only be achieved if the distortions created by apartheid are removed and employers are compelled to give preference, at least for a while, to members of groups that were disadvantaged by unfair discrimination in the past. This question was addressed in two cases (Harmse v City of Cape Town (2003) 24 ILJ 1130 and Dudley v City of Cape Town (2004) 25 ILJ 305 (LC)). Both cases brought were against the City of Cape Town in the Labour Court. The purpose of this note is to analyse and evaluate the opposing judgments in these cases.

SOME THOUGHTS ON THE UBUNTU JURISPRUDENCE OF THE CONSTITUTIONAL COURT

In this contribution I revisit the ubuntu jurisprudence of the South African Constitutional Court. After analysing the various critiques of the ubuntu reasoning of this court, I offer below a careful reading of three recent cases, namely Khosa v Minister of Social Development (2004 6 SA 505 (CC)), Port Elizabeth Municipality v Various Occupiers (2004 12 BCLR 1268 (CC)) and Dikoko v Mokhatla (CCT62/05) in order to decipher to some extent the Court’s vision of a constitutional community of “belonging together” post-Makwanyane (see S v Makwanyane 1995 3 SA 391 (CC)). In particular I explore the singular judgments of Justices Sachs and Mokgoro in order to illustrate how it is possible to assess their attempts to think the law and post-apartheid community differently as a reflection of something truly new.

1 South African Constitutional Court: Union for Police Security and Corrections Organisation v. South African Custodial Management (pty) Ltd and Others [2021] zacc 26, 7 September 2021

1 South African Constitutional Court: Union for Police Security and Corrections Organisation v. South African Custodial Management (pty) Ltd and Others [2021] zacc 26, 7 September 2021

The South African Constitutional Court Judgment Concerning the Suspension of SADC Tribunal: Critiquing the Critics of the Constitutional Court

This article discusses the various scholarly critiques of the South African Constitutional Court judgment in Law Society of South Africa & Others v President of the Republic of South Africa & Others. While we discuss and analyse the articles by some of the scholars who have critiqued the decision, we pay more attention to the criticism by Tladi in particular. We point out that Tladi failed to properly locate the main basis of the Constitutional Court’s decision. We also disagree with Tladi’s assertion that the SADC Treaty and the 2000 Tribunal Protocol could be amended through any means other than the three-quarters majority of the SADC Summit as required by the SADC Treaty. Further, we disagree with Tladi’s view that the doctrine of subsequent practice is applicable in this case and that it was correctly applied in the adoption of the 2014 Tribunal Protocol.

King NNO V De Jager 2021 4 SA 1 (CC): Three Perspectives

In the King case, the South African Constitutional Court adjudicated on a gender-based disinheritance under a testamentary fideicommissum. The court, in three judgments, found that the disinheritance violated public policy and was, moreover, unconstitutional and thus invalid. King was the Constitutional Court’s first pronouncement on a gender-based disinheritance in a purely private bequest. It therefore stands in contrast to earlier High Court and Supreme Court of Appeal judgments regarding the exclusion of potential beneficiaries under testamentary charitable bequests. This contribution provides three perspectives by commentators from three jurisdictions on the Constitutional Court’s judgment in King. The first perspective argues against an objection that can be raised against a judgment such as King, namely that it constitutes an unjustified judicial violation of personal autonomy, freedom of disposition and private property in the law of gifts and trusts. The first perspective posits that discriminatory goals such as those pursued through explicit gender-exclusive disinheritances are inherently worthless and the judicial invalidation of such disinheritances therefore have a negligible impact on personal autonomy, freedom of disposition and private property. The second perspective cautions against the Constitutional Court’s express rejection of the public/private divide in the law of gifts and trusts. It argues that the divide plays an important role in striking a balance between personal autonomy, freedom of disposition and private property on the one hand, and policy as well as constitutional imperatives regarding equality and non-discrimination on the other hand. The second perspective thus advocates that the public/private divide must be retained in the law of gifts and trusts. The third perspective evaluates the King case from a German viewpoint and argues that the Constitutional Court’s reasoning in this case undervalued freedom of testation. The third perspective advances a solution that strives to balance the arguments that underpin the first and second perspectives.

26 South African Constitutional Court: Mahlangu and Another v. Minister of Labour and Others (cct306/19) [2020] zacc 24, 19 November 2020

26 South African Constitutional Court: Mahlangu and Another v. Minister of Labour and Others (cct306/19) [2020] zacc 24, 19 November 2020

Ethical Dilemmas Related to Foetal Diagnosis and Foetocide

Ethics is an essential dimension of obstetrics and gynaecology and helps balance beneficence and autonomy-based obligations with professional conscience ensuring respect for the pregnant woman’s autonomy. The Law defines what can be offered in our country and guides the obstetrician as well as the parents. In South Africa termination of pregnancy is legal. A woman can request termination of her pregnancy up until 12weeks if she chooses so. The South African law allows termination of a pregnancy up to 20weeks and beyond 20weeks if there are significant reasons for this to be requested or offered. The question of what foetal abnormalities are considered significant and therefore should be considered for termination has led to ongoing discussions and debates in various levels of medical and legal societies. The obstetrician has the right to exercise his or her own autonomy in dealing with these situations. Exercise of autonomy by a patient cannot justifiably oblige a physician to act in a way that is unacceptable as a matter of his/her individual conscience. Citing case laws, the Courts in the country are asked to decide on “wrongful birth”- which would require a Court to determine whether a child should have been born. The South African Constitutional Court in a recent ruling determined that "this goes to the heart of what it is to be human, something that should not be asked of the law". Medical and legal societies need to work together and help guide our doctors, our patients and society as to what is ethical and acceptable practice in complex situations where children’s genetic and structural abnormalities alone perhaps should not decide their entire destiny.

Beyond discrimination: Mahlangu and the use of intersectionality as a general theory of constitutional interpretation

This case note explores the landmark decision of the South African Constitutional Court in Mahlangu and Another v. Minister of Labour and Others, which recognised intersectional discrimination under section 9(3) of the Constitution. It shows that the Court went beyond that in fact and recognised intersectionality not just as part of discrimination law, but also as part of general constitutional law, using it as a theory of constitutional interpretation in adjudication.

Accessing Quality Education in Gauteng: Intersecting Scales of Geography, Educational Policy and Inequality

In May 2016, the South African Constitutional Court ruled unconstitutional the long-term use of default school feeder zones (with a 5 km radius) to govern school admissions in Gauteng province. The ruling drew on an amicus curiae application which argued that the default feeder zones were constitutionally invalid: in the context of a profoundly unequal education system where geography and educational quality are tightly linked, they replicate spatial apartheid and perpetuate racial exclusion. The case highlights the tension between individual schools’ incentives to preserve educational quality through limiting and controlling admissions, and the Gauteng Department of Education’s mandate to ensure universal, equitable access to education for all. The competing incentives of government, schools and parents mean that multiple scales of educational governance intersect at individual schools, and in school admissions policies. As one of the UN’s 2015 Sustainable Development Goals is to ensure universal access to high-quality education, these tensions between scales of educational governance are under increasing scrutiny globally. This paper explores the distinctions and relationship between access to education and access to quality education through the case study of Gauteng, South Africa. We map a range of school-level variables to illustrate the challenges that geography poses to achieving equitable educational access and unpack how, in the context of policy that intends to univeralise access to education, physical location (of schools and children) and scale continue to shape the education that children can access.